The Law and the Lawyer

8/4/2019 The Law and the Lawyer

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M.K. Gandhi

The Law and The Lawyer


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Section I Gandhiji as a student of

Law

Passed matriculation in 1887 from

Ahmedabad

Unable to pursue one term at college in

Bhavnagar: felt at sea, unable to comprehend

what was being taught

Mavji Dave, a family friend, came up with the

suggestion of sending him to England to

pursue law and become a barrister

Gandhiji preferred medicine over law as a

career choice


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Religious hindrances in the pursuit ofmedicine

Family flummoxed by the idea of a foreign

land, the necessary financial input. It is decided to consult the elderly uncle

staying in Porbandar

The elderly uncle consents to what heconsiders as an irreligious act

attempts to get some scholarship from Mr.

Lely and fails


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Mother has misgivings regarding all the evils

of western civilization

Gandhiji is made to swear the 3 sacred vows

forsaking wine, woman and meat in the

foreign land


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Part 2

Shift to London where Gandhiji prepares for

the Bar examination and also decides to crack

the London Matriculation

He was also enrolled in University College,

London in 1888-89 as a student of Indian law

and jurisprudence


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Preparation for London

matriculation

Pre requirement of knowledge of Latin which

is a must for lawyers.

A full paper on Roman law

French as the other modern language

5 months of preparation and in the first

attempt he ploughed in latin Passes all the papers in his second attempt


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Called to the Bar Preconditions: attending 12 terms in 3 years

and passing examinations

Keeping Terms meant attending at least 6 out

of 24 dinners in a term. The dinner came at a

price. What made him wonder was that the price of

wine was more than that of dinner. His Indian

sensibility could not swallow the idea ofsplurging so much on drink.

His choice was very limited in the food on

offer


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He wondered how these dinners were a

qualification for becoming a member of the

Bar.

When there were few students qualifying for

membership, the dinners could be edifying for

the students who could learn, emulate and

practice public speaking with the Benchers butin the present rush, it was no longer possible.

The convention was now a mere formality


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The Bar exam curriculum was very easy. Therewere 2 papers Roman Law and Common Law

which could be cleared by studying notes. The

exams were held 4 times an year

Gandhiji read the Roman law in Latin and

slogged through books on Common law.

Finally, he attained admission to the Bar in

June, 1891 and then returned to India.

In spite of acquiring the degree, his

confidence level was very low.


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My Helplessness

Theoretical knowledge without the ability to

utilize it in practice

Good knowledge of English common law but

not the faintest idea of Indian law

No knowledge of difference between hindu

and muslim law

Grave doubts about his ability to earn a living

out of the profession


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Influence of Dadabhai Naroji

He bore a letter of introduction but neverused it

Fond of hearing Dadabhai speak.

A Mr. Frederick Pincutt had laughed away hisconcerns by saying that every lawyer need not

be an excellent orator. Rest assured it takes

no unusual skill to be an ordinary lawyer.Common honesty and industry are enough to

enable him to make a living.


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Advised to expand the horizon of

his reading

You have no knowledge of the world, a sine

qua non for a vakil. You have not even read

the history of India. A vakil should know

human nature. He should be able to read a

mans character form his face.

The skill of reading someones face seems an

elusive one for him.

His 3 years as a student of law were over.


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Section II - Gandhiji as a lawyer His voyage to India was internally stormy.

He was worried about the caste barrier as well

as his inadeptness as a lawyer

His elder brother, who had funded his

education, had built high hopes for him and

was hoping to get him some briefs from his

wide circle of friends.

After his return he was taken to Nasik for a

ritualistic purification and hence readmitted

into the caste


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After his return, due to adaptation of a

westernized lifestyle, expenses had gone up in

the house.

Gandhiji was advised to go Bombay High Court

to learn practicial nuances of court procedure

and to get some cases

his early experience after qualifying as a

barrister was a bitter cup of tea with verymeager knowledge and an overwhelming

sense of responsibility


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The First Case

Gandhiji grappled to come to terms with CPC,Evidence Act.

His first case was that of Mamibai for which he

received a fees of Rs. 30

His first appearance in the court as a defense

counsel was overpowered by bouts of nausea

and hesitation

Eventually he withdrew from the case and

never appeared for any client till he left for

South Africa


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He drafted a memorial, attempted his hand at

teaching but seemed to be facing defeat on all

sides.

He shut up his establishment in Bombay after

a futile 6 months and returned to Rajkot.


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The First Shock

Back in Rajkot, he was able to make Rs. 300per month by drafting memorials and

application

He is forced to concede to the convention of

paying commission to go betweens

His brother got entangled in some controversy

and only Gandhi could get him out of it by

using his friendship with the political agent.

Gandhi had misgivings about exploiting an

acquaintance but the entreaties of his brother

proved stronger.


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When he approached the Political Agent, he

was impolitely snubbed and escorted out by

the peon

Gandhi contemplated legal action against the

agent but Sir Pherozehshah Mehta advised

him against it.

Resolution Never again shall I place myself in

such a false position, never again shall I try to

exploit friendship in this way.


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Preparing for South Africa

After suffering an ill digested insult, he finds

life intolerable in Kathiawad and looks for a

route to escape

His brother receives the offer of sending him

to SA for a big 40000 pound case. The firm

sending the offer was Dada Abdullah & Co.

In his present desperate state, he accepted

the offer


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Arrival in Natal

He was now a seasoned traveler and did not

have the initial misgivings as at the time of

setting sail for England (1893)

An uneventful journey to Natal


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Some experiences

At Natal port, he notices Indians being treatedas second grade citizens.

Seth Abdullah finds Gandhi to be a white

elephant, an additional expenditure, not muchhelp, open to influence by the other side and

not much legal help.

In the Durban court, the judge asks him toremove his turban which he refuses to do.

He is known as a coolie barrister over there


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He decides to keep wearing his turban nad

brings the matter to SA press


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On the way to Pretoria

He has to go to Pretoria in relation to the case

but he needs to understand the intricacies of

the case first.

He mastered knowledge of accounts to

understand the case

Gandhi for the first time, starts thinking in

terms of out of court settlement of the case


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First day in Pretoria

He met the attorney of Abdulla Seth and

understands a few facts about the case


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Preparation for the case His first exposure to public life

Development of religious spirit

Acquired knowledge of legal practice

Learnt the secret of succeeding as a lawyer

He closely understands the preparation of

case by both counsels

Preparation of plaintiffs case for attorney andsifting of facts was entrusted to him

Absorbed himself completely in the case


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Learnt book keeping

Ability to translate from gujarati to english

Studied case law on the subject

Gandhi, I have learnt one thing, and it is this,that if we take care of the facts of a case, the

law will take care of itself. Let us dive deeper

into the facts of this case.

Facts means truth, and once we adhere to

truth, the law comes to our aid naturally.


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Litigation would ruin both the parties while

arbitration would be a more suitable

conclusion to the case

He met the other party, Tyeb Sheth also and

advised him to start thinking in terms of

arbitration

The case was becoming a giant with huge

lawyers fees, increasing ill will and raking up

of insignificant issues


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He also realized that the winning side never

recovers the complete costs. Finally he pursued both parties to go for

arbitration. An arbitrator was appointed, the

case was argued before him and ShethAbdulla won.

Gandhi persuaded Sheth Abdulla to take the

award of 37000 pounds + costs in installmentsrather than at one go

Both parties agreed to these installements

and there was a happy resolution of the case


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Lesson learnt I had learnt the true practice of law. I had

learnt to find out the better side of human

nature and to enter mens hearts. I realized

that the true function of a lawyer was to unite

parties riven asunder. The lesson was soindelible burnt into me, that a large part of my

time during the 20 years of my practice as a

lawyer was occupied in bringing about privatecompromises of hundreds of cases. I lost

nothing thereby- not even money, certainly

not my soul.


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Man Proposes, God Disposes

His task over, he started preparing for his

return and was given a farewell party by Sheth

Abdulla

At the party, he reads a piece of news in a

local paper refering to a Bill before Legislature

which sought to deprive Indians of their right

to elect members of the Natal Legislativeassembly.


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From questioning he came to realize that most

of the Indian community in SA was illiterate,

ignorant, the Christian converts stopped

regarding themselves as Indians and there was

no consciousness regarding deprivation of right

to vote It was decided by all the people present that

Gandhi would delay his return and take up the

issue. He refused to charge fees, wanted toallocate some budget for expenses incurred,

wanted volunteers. All these demands were

readily agreed upon


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He delayed his departure by a month and

threw himself whole heartedly into the job of

opposing the Bill


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Settled in Natal

An initial meeting was help to offer oppositionto the Franchise Bill

Volunteers were enrolled from amongst

Christian Indian youths. The entire Indian community was united for

the cause

The bill had already been passed and its initialacceptance was proof that Indians were unfit

for Franchise


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Initially telegrams were sent trying to

postpone discussion on the bill

The petition to be presented to Legislative

Assembly was drawn up and a signature

campaign was initiated, the petition was

discussed in LA but was eventually passed

The campaign had united the entire

community and infused a new spirit in them

Another petition was submitted to Lord Ripon

who was Secretary of State for Colonies.

10000 signatures were obtained on the same.


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This second petition gained widespread

publicity.

He was persuaded to stay on in South Africa

permanently but could not do so without

some legal work and an annual income of 300

pounds

He refused to charge any fee for the public

work he did

eventually some merchants started giving him

their legal work


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Colour Bar Gandhi set about applying for admission as an advocate of

Supreme Court. He possessed the Certificate of admissiongiven by Bombay High Court but his London Bar exam

certificate was deposited in BHC. He also attached 2 character

certificates by European merchants to his application

The Law society refused to admit him as advocate for tworeasons: first, his original Bar exam certificate was not

attached. Second, a colored man could not become an

advocate of SA SC

After some discussion and an affidavit submitted by DadaAbdulla, his application for enrolling as an advocate was

finally accepted

He was made to remove his turban to confirm to the dress

code of advocates


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All my life through, the very insistence on

truth has taught me to appreciate the beauty

of compromise. I saw in later life that this

spirit was an essential part of Satyagraha. Ithas often meant endangering my life and

incurring the displeasure of friends.

(1893-1901 time period spent in South Africa)


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Settled in Bombay?

Returned to India in 1901 with intention ofsettling down, assisting Gokhale in Congress

work and practising law (with memories of his

past failure in the same place lingering)

Got 3 briefs from Mavji Dave, won a case,

gained some confidence

The Judicial Assistant kept shifting his court tovarious places, even to plague ravaged Veraval

which displeased Gandhi and caused

tremendous hardships to his clients


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He eventually settled down again in Bombay

and this second innings was better than first.

He prospered well and kept on getting work

from his SA clients.

He was again unexpectedly summoned to SA

for the visit of Chamberlain and his second

stint at Bombay also ended suddenly


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Some reminiscences of the Bar

Traits- I never resorted to untruth in myprofession, and that a large part of my

practice was in the interest of public work

He never tutored his witnesses to speakuntruth

He never fixed conditions of winning and

losing the case and bringing variance in thefees accordingly

He built a reputation of standing by the truth


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In one specific case of accounts arbitration, his

client was getting more rewards than was hisright.

In spite of the senior counsel dissuading him,

he admitted the matter in open court and gotthe error rectified rather than the matter

being referred for a fresh hearing which would

have been injurious to his clients interest Lesson learnt:I was confirmed in my

conviction that it was not impossible to

practice law without compromising truth.


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Clients turned Co-workers

Specimen of honesty: I discovered that myclient had deceived me. I saw him completely

break down in the witness box. So without any

argument I asked the Magistrate to dismiss

the case i rebuked my client for bringing a

false case to me

In case he was ignorant of any facet of law, he

frankly advised his clients to seek some other

counsel

Hundreds of his SA clients became friends and

co-workers


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How a client was saved

An anecdote of Parsi Rustomji who was a friend and co-

worker

While importing goods from India, he resorted to smuggling

and he was once caught red handed

Rather than taking the matter to court, Gandhi suggested

meeting the Customs officer and Attorney General and

confessing the entire gamut of smuggling and paying

whatever charge was levied by them

Parsi was made to pay penalty equal to twice the amount he

had confessed to having smuggled. A valuable lesson for Parsi

Rustomji


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SECTION III The Trials of Gandhiji

Before the court in 1907: An association was

formed to protest against the Peace

Preservation Ordinance which in the guise of

protecting the colony from dangerouscharacters, was intended to prevent Indians

from entering and residing in Transvaal

The Peace Preservation Ordinance providedthat anyone of foreign origin entering the

Transvaal without a work permitshould be

liable to arrest and imprisonment.


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All the opposition of Gandhi and company

remained futile and eventually the Ordinance

became Immigration Act.

Gandhiji and 25 of his co-workers were

arrested under the Act and ordered to

produce their work permits.

In court, Gandhi was not allowed to make any

political speeches and because he had no

other defense, he was ordered to leave the

country within the next 48 hours


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Before the court in 1908 Gandhi plead guilty to the charge of

disobeying the order of the court to leave the

colony within 48 hours

Other offenders charged with the same lack of

work permit were sentenced to 3 months of RI

and heavy fine. He also sought the same or a

stricter punishment for he was equally guilty

The judge felt that the Contempt of Court

Gandhi had committed was more a political

offence rather than a legal offence so he was

given 2 months of simple imprisonment


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Before the Court in 1913

The agitation here was related to the

compulsory 3 pound taxto be paid by all

foreigners. In spite of many rounds of

negotiations, the tax was not repealed andGandhi asked all indentured laborers to

suspend work till their demand was not met.

Gandhi was arrested, brought to Court, hepled guilty and his defense, Mr. Godfrey

appealed on behalf of his client to levy the

greatest possible penalty on the defendant.


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In his statement, Gandhi called on the workers

to continue their agitation

The judge in his verdict read It was a painful

duty to pass a sentence upon the conduct of a

gentleman like Mr. Gandhi..

He was eventually awarded 3 months of RI


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Was it contempt of court? (1919)

The matter in question was publication of aletter related to a trial lis pendens

two barristers and 3 pleaders had openly

expressed their support of satyagraha and

while the proceedings against them were lis

pendens, the letter sent by Advocate General

through Registrar to the concerned parties

was published in Young India


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Gandhi was summoned to court but expressed

his inability to attend because he was

travelling and sent the following explanation:

the letter was received by him in ordinarycourse and that he published it as he believed

it was of great public importance and that he

thought that he was doing a public service incommenting on it. He, therefore claimed that

in publishing and commenting on the letter,

he was within the rights of a journalist.


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The Court demanded a written apology from him in Young

India which he refused to assent to and wrote In doing so I

performed, in my humble opinion, a useful public duty at a

time when there was great tension and when even the

judiciary was affected by the popular prejudice. I need hardlysay that I had no desire to prejudge the issues that Their

Lordships had to decide.

The instance gave rise to great deliberation on the issue of

Press Commenting upon pending trials. Many examples werequoted from sensational murder trials where the press had

already awarded judgment before the due procedure of law

could be completed.


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Contempt Case Judgment

Gandhi was charged with Contempt of Court

under 2 heads:

A. any act or writing tending to scandalize the

court

B. any act or writing calculated to obstruct or

interfere with the due course of justice or the

lawful process of the court.

J dgment in contempt case(pg 92


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Judgment in contempt case(pg-92-

98) His Lordship Justice Marten wrote: the comments made in

the newspaper were of a particularly intemperate and

reprehensible character. They also amounted to scurrilous

abuse of the JudgeIn the present case the court has very

seriously considered whether it ought not to impose asubstantial fine on one if not both of the respondents, but on

the whole, I think it is sufficient for the Court to state the law

in terms which I hope will leave no room for doubt in the

future, and to confine our order to severely reprimanding the

respondents and warning them both as to their future

conduct.

Gandhis view in Contempt of


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Gandhis view in Contempt of

Court case If I dwell upon the judgment it is only because I am anxious

as a satyagrahi to draw a moral from itI had to conserve a

journalists independence and yet respect the law. If it was

disobedience, there was no defiance but perfect resignation,

there was no anger or ill will but perfect restraint and respect;that if I did not apologize, I did not, because an insincere

apology would have been contrary to my conscience. Here

then we have an almost complete vindication of civil

disobedience Disobedience to be civil must be sincere,

respectful, restrained, never defiant.


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The Great Trial (1922) (pg.100) Arrested for publication of 4 articles in Young

India namely: Disaffection a Virtue

Tampering with Loyalty

The Puzzle and its Solution

Shaking the Manes

The charge in each case was that of bringing or

attempting to bring into hatred or contempt

or exciting or attempting to excite disaffection

towards His Majestys Government.

Once again he pled guilty to all charges


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Gandhiji charged under Section 124A of IPC

Trial commenced on 18 March, 1922

The accused was charged with bringing or

attempting to bringing into hatred or

contempt or exciting or attempting to excite

disaffection towards His Majestys

Government

Disaffection defined as disloyalty and feeling

of enmity


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Gandhiji in his statement pled guilty.

The judge was free to convict the accused on the basis of

pleas or proceed with the trial

The Advocate General insisted on proceeding with the trial

for it was highly desirable in public interest that the charges

should be fully and thoroughly investigated

The Judge disagreed with idea of fully investigating the

charges to which Gandhi had already pled guilty and full

recording of evidence would reveal no new facts

Sir Thomas Stangmans statement was recorded in which hesaid that the articles in Young India were not isolated

incidents but part of a well planned campaign to spread

disaffection. He quoted other instances from Young India


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Sir Strangman said that the Chauri Chaura incident was a

result of this organized attempt to spread disloyalty towards

the Govt.

But what was the use of preaching non violence when he

preached disaffection towards the Govt. or openly instigatedothers to overthrow it?... These were circumstances which he

asked the court to take into account in sentencing the

accused, and it would be for the court to consider those

circumstances which must involve sentences of severity.


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Gandhis statement (pg.108-09)

to preach disaffection towards existing system of Govt. has become

almost a passion with meThinking over these deeply and sleeping over

them night after night, it is impossible for me to dissociate myself from the

diabolical crimes of Chauri Chaura or the mad outrages of Bombay. He is

quite right when he says that as a man of responsibility, a man having

received a fair share of education, having had a fair share of experience ofthis world, I should have known the consequence of every one of my

actsNon violence is the first article of my faith. It is also the last article of

my creed. But I had to make my choice. I had either to submit to a system

which I considered had done an irreparable harm to any country, or incur

the risk of the mad fury of my people bursting forth when theyunderstood the truth from my lips.

Gandhis written statement (pg


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Gandhi s written statement (pg.

110-115) I should explain why from a staunch loyalist or co-operator I have become

an uncompromising disaffectionist and non-cooperator I discovered that

I had no rights as a man, because I was an Indian I thought that this

treatment of Indians was an excrescence upon a system that was

intrinsically and mainly goodThe first shock came in the shape of Rowlatt

Act, a law designed to rob the people of all real freedomI camereluctantly to the conclusion that the British connection had made India

more helpless than she ever was before, politically and economically.No

sophistry, no jugglery in figures can explain away the evidence that the

skeletons in many villages present to the naked eye The law itself in this

country has been used to serve the foreign exploiter. My unbaisedexamination of the Punjab Marital Law cases has led me to believe that at

least 95% convictions were wholly bad. In my opinion, the administration

of the law is thus prostituted consciously or unconsciously for the benefit

of the exploiter.


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Contd.

section 124A under which I am happily charged is perhaps

the prince among the political sections of the IPC designed to

suppress the liberty of the citizenI have studied some of the

cases tried under it, and I know that some of the most loved

of Indias patriots have been convicted under it. I consider it aprivige therefore, to be charged under that sectionIndia is

less manly under the British rule than she ever was before.

Holding such a belief, I consider it a sin to have affection for

the system.


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I am here therefore, to invite and submit cheerfully to the

highest penalty that can be inflicted upon me for what in law

is a deliberate crime and what appears to me to be the

highest duty of a citizen. The only course open to you, the

Judge, is either to resign your post and thus dissociateyourself from evil, if you feel that the law you are called upon

to administer is an evil and that in reality I am innocent; or to

inflict on me the severest penalty if you believe that the

system and the law you are assisting to administer are good

for the people of this country and that my activity is therefore

injurious to the public weal.


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The Judgment

Mr. Gandhi, you have made my task easy in one way by

pleading guilty to the charge Neverthless, what remains,

namely the determination of the just sentence, is perhaps as

difficult a proposition as a judge in this country could have to

face. The law is no respecter of persons. Neverthless, it will beimpossible to ignore the fact that you are in a different

category from any person I have tried or am likely to have to

try. It would be impossible to ignore that , in the eyes of

millions of your countrymen, you are a great patriot and a

great leader.


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Contd.

I am trying to balance what is due to you

against what appears to me to be necessary in

the interest of the public, and I propose in

passing sentence to follow the precedent of acase that was decided some 12 years ago, I

mean the case against Bal Gangadhar Tilak

under the same section. The sentence thatwas passed upon him as it finally stood was a

sentence of simple imprisonment for 6 years.

Gandhis comment on the


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Gandhi s comment on the

judgment

I just want to say that I consider it to be the

proudest privilege and honour to be

associated with his name. So far as the

sentence itself is concerned, I certainlyconsider it as light as any judge would inflict

on me, and so far as the whole proceedings

are concerned, I must say that I could nothave expected greater courtesy.


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Section IV

LAWYERS AND SATYAGRAHA


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Boycott of law courts by lawyers

I submit that national non cooperation requires

suspension of their practice by lawyers. Perhaps no

one cooperates with a govt. more than lawyersthrough its law courts. Lawyers interpret laws to the

people and thus support authority. It is for that

reason that they are styled officers of the court. So

when the nation wishes to paralyze the Govt, thatprofession, if it wishes to help the nation to bend the

govt to its will, must suspend practice.


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Work for lawyers The lawyers are not to suspend practice and enjoy

rest. They will be expected to induce their clients to

boycott courts. They will improvise arbitration

boards in order to settle disputes. A nation, that is

bent on forcing justice from an unwilling govt, haslittle time for engaging in mutual quarrels.. But

what will happen to law and order? We shall evolve

law and order through the instrumentality of these

very lawyers. We shall promote arbitration courtsand dispense justice, pure, simple, home made

justice, swadeshi justice to our countrymen. That is

what suspension of practice means.

A ressing con ict etween in u


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gand muslim lawyers involved in

Khilafat issue Lastly, for Mohammedan lawyers, it has beensuggested that if they stop practice, Hindus

will take it up. I am hoping Hindus will at least

show the negative courage of not touchingtheir Muslim brethrens clients, even if they do

not suspend their own practice.

Hallucination of law courts (pg


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Hallucination of law courts (pg.

123) Let those who frequent the law courts bear

witness to the fact that the atmosphere about

them is foetid. Perjured witnesses are ranged

on either side, ready to sell their very souls for

money or for friendships sake. The courts aresupposed to dispense justice and are

therefore called the palladile of a nations

liberty. But when they support the authorityof an unrighteous govt they are no longer

palladile of liberty, they are crushing houses to

crush a nations spirit.

Economic drain caused by law


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Economic drain caused by law

courts The best SA lawyers- and they are lawyers of great

ability dare not charge the fees the lawyers in India

do. 15 gunieas is almost a top fee for legal opinion.

Several thousand rupees have been known to have

been charged in India. There is something sinful in a

system under which it is possible for a lawyer to

earn from 50000 to 1 lakh rupees per month. Legal

practice is not- ought not to be- a speculativebusiness. The best legal talent must be available to

the poorest at reasonable rates.


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Cobblers v. lawyers

Lawyers refused to answer Gandhis call for

suspension of practice and did not want to

join Congress for Gandhi, in an article, had

referred to them as cobblers.

Gandhi apologised Having been myself a

lawyer, I could not so far forget myself as

wantonly to offend members of the sameprofession.


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Humility in satyagrahis

arrogant assumption of superiority on the

part of a non- cooperator who has undergone

a little bit of sacrifice or put on khadi is the

greatest danger to the movement. A non co-operator is nothing if he is not humble.

Lawyers can certainly do silent work as

lieutenants in the matter of swadeshi. Itrequires the largest number of earnest

workers.

Ways to help the movement by


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Ways to help the movement by

practising lawyers

A lawyer who cannot suspend practice can certainlyhelp with money, he can give his spare hours to

public service, he can introduce honesty and fair

dealings in his profession, he can cease to consider

clients as fit prey for pecuniary ambition, he cancease to have anything to do with touts, he can

promote settlement of cases by private arbitration,

he can at least do spinning himself for one or two

hours per day, he can simplify the life of his family, he

can induce the members of the family to do spinning

religiously for a certain time daily, he can adopt for

himself and his family the use of khaddar.

Practising lawyers becoming


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Practising lawyers becoming

Congress office bearers

In my opinion, those lawyers who have not

yet succeeded in suspending their practice,

cannot expect to hold office in any congress

organization or lead public opinion onCongress platforms. Will titled men be elected

as office bearers, although they may not have

given up their titles? If we do not face theissues boldly, we stand in danger of corrupting

the movement.


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A protest

A young lawyer from Jubbulpore protested against 2Malguzars holding congress office while practicing

lawyers were forbidden from doing so. The young

man pointed out in a letter to Gandhi that the british

regime thrives on Malguzars who exploit and collecttaxes from poor farmers so no practising Malguzar

has the right to be a congress office bearer. If a

lawyer who has not suspended his practice is not a

proper person to be an office bearer, certainly aMalguzar too should not be an office bearer. A

malguzar is more attached to the govt. than a

lawyer.


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Gandhis response

The congress has not yet called upon landholders tosurrender their lands to the govt nor is it very likely to. These

youngmen, like some land holders sons elsewhere are taking

an honorable part in the national uplift and they deserve

every encouragement form lawyers. There are no twoopinions about the fact that intellect rather than riches will

lead. It might equally be admitted by the correspondent that

the heart rather than teh intellect will eventually lead.

Character, not brains will count at the crucial moment. And I

fancied that these young men showed character. I should be

sorry to find otherwise.

Persistent problem of lawyers not


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Persistent problem of lawyers not

forsaking practice

I cannot conceive the possibility of the

movement, which is one of self sacrifice,

succeeding if it is led by lawyers who do not

believe in self sacrifice success dependsupon bravery, sacrifice, truth, love and faith;

not on legal acumen, calculation, diplomacy,

hate and disbelief.

h h ( )


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The Satyagrahi Lawyers (1919)

Related to the same matter as publication of

an official letter while the trial was lis pendens

Some barristers had signed the satyagrah

pledge and promised to disobey Rowlatt actand other British laws

After trial, no disciplinary action was taken

against them but a warning was issued tothem

Gandhis comment on the


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Gandhi s comment on the

judgment

the judgment is highly unsatisfactory. It has

shirked the issue. The logical outcome of the

judgment should have been punishment and

not a postponment of it. The lawyers inquestion had shown no repentance. So far as

the public know, they will be ready to offer

civil disobedience should the occasion arise.


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Mysore Lawyers A Mr. Dasappa, practicing lawyer at Mysore Chief Court had

been disbarred for participating in satyagrah and addressinganti govt rallies.

He was charged with disobeying govt orders regarding holding

meetings in certain prohibited places and not participating in

an inquiry being conducted by the govt in a case of policetorture

He has done what many patriot lawyers or no lawyers have

done in British India. And nowadays the judges take no notice

of their conduct and the public have made of them heroes.My condolence and pity go out to te Judges who have

delivered a judgment which, let me hope, in their cooler

moments they will regret.


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Let them remember Thoreaus saying that

possession of riches is a crime and poverty a

virtue under an unjust administration.


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Instances of legal commentary on many

controversial judgments awarded by British

Courts follow:

The cases are specifically related to PunjabMartial Law cases Tribunal

B b K li h R


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Babu Kalinath Roy

Kalinath Roy charged under Section 124A for

publishing provocative writings in the Tribune.

Gandhi examined all the writings and found

the charge and judgment to be a case ofexcessive judicial activism where the reporter

had been unjustly punished for mere

statement of facts.

L l R dh K i h C ( 150)


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Lala Radha Krishnas Case (pg.150) More severe than Babu Kalinaths case

The accused here published in a vernacular paper

Pratap

the judgment is a travesty of justice.

The accused sentenced not under 124A but on a ruletemporarily framed as a war measure, a rule

promulgated by the govt under the powers granted

to it under Defence of India Act.

The indictment contained material inaccuracies, was

very loosely drawn up and argumentative. It could

never have been upheld in a proper trial.


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The judgment also gave an impression of

prejudice and haste

Without going into the question whether he

intended to cause fear or alarm to the public,we are satisfied that the publishing and

circulating of these false statements did

actually cause fear and alarm to the public.

L h J d t


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Lahore Judgment 3 lawyers and 2 commoners charged under

section 121 of IPC which read as Whoever

wages war against the Queen, or attempts to

wage war, or abets the waging of such war,

shall be punished with death or transportationfor life, and shall forfeit all his property. They

were tried before a special tribunal and

transported. Even the judges remarked thatthe punishment was too harsh but since the

accused were indicted under 121, there was

no alternative left.

G dhi t i Y I di


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Gandhis comment in Young India

The judgment forms the saddest commentary

on british justicethe judges are ruled by

passion and prejudiceJustice in British courts

is an expensive luxury. It is often the longestpurse that wins Agree with thine adversary

quickly is the soundest legal maxim ever

uttered. The judgment intended to condemn the

Rowlatt act agitation.


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The issue before the court was Can we or can we not, legallycarry on a sustained powerful agitation involving processions,

hartals, fasting etc, but eschewing, always and invariably,

violence in any shape or form? The implication in the

judgment is that we may not do so. There is nothing in thejudgment to show that any of the accused either directly or

indirectly encouraged violence. And where there is absence of

intention to do violence, it is absurd to call a peaceful

combination a criminal conspiracyThe duty of the Indian

public is clear: By a quiet, persistent and powerful agitation,

but without violence and irritation, to secure repeal of the

Rowlatt legislation and the reversal of the sentences.

J th C


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Jagannaths Case Not a celebrity case like Kalinath Roy or Radha

Krishna.

Accused charged under section 121 of IPC and

sentenced to transportation for life

He was accused of actively participating in

activities leading upto the hartal in punjab on

14 April, 1919

The accuseds defence rested upon an alibi

that he left Gujranwalla on 12th by 5 pm train

and so did not participate in organization of

hartal


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Inspite of the defendants plea, the judges

were impatient to deliver their verdict

whereby they transported the innocent man

for life without proper examination of thedefense and the alibi

Another scandal


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Another scandal

Another batch of cases at Punjab Special Tribunals where thejudgment was completely unbearable

The poignancy of the sorrow that the atrocious injustices

such as I have had the painful duty of exposing have caused, is

increased by the knowledge that perpetrators of theseinjustices are judges in whose judgments the people have

been accustomed to put the utmost faith. This unevenness of

temperament can only be accounted for by the supposition

that the trained judicial intellect of the Judges must have

suffered temporary aberration by the events of Punjab.


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Hafizabad case

I have never come across cases in which

capital punishment has been so lightly

pronounced, on the flimsiest evidence takendown in a most perfunctory manner, as

appears to me to have been done.

19 accused charged under section 121(waging war), 147 (rioting), 149 (unlawful

assembly), 307 (attempt at murder).


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The 19th accused was a young student of DAVhafizabad named Karamchand, accused of

inciting riots on the lahore model on 11 April

but the evidence against him was very paltry. He produced an alibi to prove that he was not

in hafizabad on the day of rioting i.e. 14 April

but back in his native village Karamchands is a case of palpable injustice

victims not guilty


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victims, not guilty

Ramnagar cases

They constituted not a legal trial but a mockery of it. The

accused, 28 in number, were all tried together, the trial was

finished in one day during which altogether 150 defense

witnesses were examined, the accused were not informed ofthe charge against them except thorough the mouths of the

prosecution witnesses. There was no occasion for indecently

rushing through the trial The judgment is self-condemned. It

breathes vindictiveness and anger. The rejection of the

defence evidence, the explaining away of the weak points in

the prosecution, the punishment of solitary confinement, the

heavy fines point unmistakably to loss of balance and

unfitness to judge.

Dr Satyapals case


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Dr. Satyapal s case

Dr. Satyapal and Dr. Kitchlew accused ofinciting violence which took place after their

arrest.

Dr. Satyapal in a clear, emphatic andcourageous statement categorically denied

the whole string of charges against him.

He was charged of committing sedition, thecharges against him were altered

retrospectivley.

Lala Labhu Ram


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Lala Labhu Ram

Isolated cases of injustice will happen in thebest regulated society and under a model

govt. But when injustice becomes the order of

the day, it is time for honest men not merelyto protest against it but to withdraw their

support from a system of govt under which

such organized injustice is possible, unlessthat system is changing and systematic

injustice becomes an impossibility.


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The judgment in Lala Labhu Rams case commences with thesentence The evidence for the defense is worthless.

Lala was a prosperous civil engineer, apolitical by

temperament, with no membership of any political party or

sabha, was arrested on 20 April for being one in a hundredcommitting an assault on a police officer on 12 april,

identification was impossible, many professional witnesses

swore that they identified him, he gave a perfect alibi of being

elsewhere the recorded evidence itself showed a patent

miscarriage of justice.

Gujaratimals case


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Gujaratimal s case A young boy of 18, newly returned from Egypt after serving as

a worker in British forces, arrested on 16 April for someunknown cause from his native village.one of 19

simultaneously put to trial Sentenced to be hanged. His

sentence was subsequently commuted to transportation, and

still more subsequently, to 7 years RI.

It is serious matter to sentence a lad of 18 years, who denies

his guilt, who denies having been present at the scene itself

and who has only lately rendered service to the Crown, to be

hanged on the strength of the very questionable evidence of

identification by witnesses of no standing

Gandhi quotes material evidence from Gujaratimals father

saying that all the witnesses had been unable to identify him

at an occasion heretofore.

Labh Singh


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Labh Singh

Accused under section 121 of IPC for being present

at Anti Rowlatt meetings on 12th and 13th and then

present with mobs on 14th.

The whole conviction was based on uncorroborated

testimony Labh Singh, the order goes only to confirm and

perpetuate what is a great and serious miscarriage of

justice. The court proceeded to the judgment with

inordinate haste and without waiting for the answers

to the interrogatories issued to some of the

witnesses for the defence.

Gandhis conclusion


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Gandhi s conclusion

According to Sir Edward Maclagan they are all clearly guilty.According to the evidence before the public, they are all

clearly innocent. We may not allow young men of brilliant

ability and moral worth to have their careers blasted for life

by our indifference. Posterity will judge us by our ability tosecure justice in the cases such as I have had the painful duty

of placing before the public. For me, justice for the individual,

be he the humblest, is everything. All else comes after. I feel

that even the Government of India will find it hard to

withstand a unanimously expressed public opinion based on

facts and couched in the language of moderation.

More Punjab Tragedies


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More Punjab Tragedies

Gurdayal Singh- accused of perpetratingviolence on days when he was confined to bed

with appendicitis. Accused was not told the

identity of prosecution witnesses norinformed of the charge against him

How not to do it?


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Important note for pleaders and drafters

Criticism of language of petitions

I assure them that a bare statement of facts embellished with

adjectives is far more eloquent and effective than a narrative

glowing with exuberant laguage. Petition writers must

understand that they address busy men, not necessarilysympathetic, sometimes prejudiced, and almost invariably

prone to sustain the decisions of their subordinates. Both

Gokhale and Dada Naroji told me that if I wanted to be heard I

must be brief, I must write to the point and adhere to facts,

and never travel beyond the cause under notice, and I must

be most sparing in my adjectives.


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Kesar Mal, one of the 19 in Hafizabad case,was sentenced to be hanged.

The case was that of assault of Lieutenant

Tatam by an unruly mob at the railway station.There was no conclusive evidence against

Kesar Mal. He was not identified in the

identification parade.

An unworthy defence


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An unworthy defence

A Miss Sherwood was assaulted in Amritsar by anunruly mob and the govt. passed the orders that

those who wished to pass the scene of assault

should be made to crawl on their hands and knees.

Surely there are nobler methods of ensuring

protection for European women. Have their lives

been in such danger in India as to require any special

protection? Why should the life of European womenbe held more sacred than that of an Indian woman?

Fining the labourers


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Ahmadabad had to pay a fine of nearly 8 lakhs inconnection with the April, 1919 disturbances and the

subsequent loss to public property.

A law that allows a govt. thus arbitrarily to impose a

penalty is a bad law.My object is to bring to public

notice an unwise and untimely and an almost

despotic application of that bad law. Terrorizing

punishment is hardly the best method of weaningoffenders from wrong-doing, and in the present

instance the punishment will fall upon many

innocent shoulders.



107/130


The recovery to be made by the govt wouldbe deducted from the salary of mill workers.

They have not been given the chance of

appeal not have they been given the option ofpaying the fine themselves. The caution

money, that is, the money retained by the mill

owners out of the wages due to the mill

hands, has been summarily attached without

notice to or consent of the laborers

concerned.

The Amritsar appeals


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The Amritsar appeals 21 citizens of Amritsar had appealed in Privy Council against the unjust

punishments of lower courts in connection with the April, 1919 incidents. The Privy council dismissed the appeal against lawless and irregular

procedure.

I must confess that the judgment does not come upon me quite as

surprise My opinion, based upon a study of political cases, is that the

judgments even of the highest tribunals are not unaffected by subtlepolitical considerations. The consequences of a decision favorable to the

people would have exposed the Indian govt to indescribable discredit from

which it would have been difficult (for it) to free itself for a generation.

Deeper discredit, therefore, now attaches to the government by reason of

the judgment, because rightly or wrongly the popular opinion will be there

that there is no justice under the British constitution when large political

or racial considerations are involved.

The Punjab sentences


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The Punjab sentences

The Viceroy Lord Chelmsford refuses to commute 2 death sentences inspite of lack of substantial evidence against the accused. The popular

belief favors the view that the condemned men are innocent and have not

had a fair trial. The execution has been so long delayed that hanging at

this stage would give a rude shock to Indian society.But if the govt will

grievously err, if they carry out the sentences, the people will equally err ifthey give way to anger or grief over the hanging if it has unfortunately to

take place.we must be prepared to contemplate with equanimity, not a

thousand murders of innocent men and women but many thousands

before we attain a status in the world that shall not be surpassed by any

nation. We hope therefore that all concerned will take rather than lose

heart and treat hanging as an ordinary affair of life.

Finally some of the accused were not pardoned and hanged.

Lawyers Duty (pg 205)


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Lawyers Duty (pg.205) I have never minced words in criticizing lawyers Though the

lawyers deserve criticism, their contribution to the fight forfreedom is no mean one. Pherozshah Mehta, the uncrowned

kinf of bombay, was an eminent lawyer. The Lokmanya was a

lawyer.all these are lawyers and the President of the

congress himself is a lawyer. People expect every lawyer to be

a patriot, as they expect every brahmin to possess spiritual

knowledge. A lawyer, by his very profession, is an advocate of

peoples rights, an expert in law and politics and one who

saves the victims of oppression by the state. When,

therefore, a class of people who should regard service of thecountry as their profession give themselves up to the pursuit

of self interest, lead a life of self indulgence or have no other

aim than making money by encouraging litigation, people

naturally speak ill of them.

Duties of lawyers in national


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struggle

Keep accounts of public funds Explain legal intricacies to people

Enquire into civil disobedience cases which have beem arbitrarily dealt with

Be present at places where there is fear of violence

Explain to people cases of arbitrary use of authority

Enquire into injustices being perpetrated at persent Help in manufacturing khadi

Help in boycott of foreign cloth

In absence of political leaders who have been arrested, lead the people and

encourage the present spirit of fearlessness

Section V


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Section V

Miscellaneous

How to spiritualize the profession?


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Conversation with law students in columbo

The first thing you would bear in mind if youwould spiritualize the practice of law , is not to

make your profession subservient to the

interests of your purseThere are instances ofeminent lawyers in all countries who led a life

of self sacrifice, who devoted their brilliant

legal talents entirely to the service of the

country even whilst I was engaged in

practice, I never let my profession stand in the

way of my public service


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The second thing I have found that in thepractice of their profession lawyers are

consciously or unconsciously led into untruth

for the sake of their clients. An eminentlawyer has gone so far as to say that it may

even be the duty of a lawyer to defend a client

whom he knows to be guilty. There I disagree.

The duty of a lawyer is always to place before

the judges, and to help them arrive at, the

truth, never to prove the guilty as innocent.

A Judges indictment


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A Judge s indictment

Pg. 211 to 213

(to be read completely)

An unjudicial dictum


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An unjudicial dictum

Verdict of 2 appellate court judges on Allahadbad High Court published in YoungIndia

The case is unsatisfactory because we have no less than 5 persons who were in

effect, if their evidence can be relied upon, eye witnesses and yet, having regard to

the slight value placed upon truth in this country, we have seriously to apply our

minds as to whether they can be believed.

Gandhis scathing comment: What legal basis had these two judges for the

sweeping statement made by them as to the character of a whole nation? The

inference is that in other countries a higher value is placed upon truth. Be it

noted that the Allahabad judges have made use of their bias in coming to their

decision and have thus proved their incapacity to hold responsible posts.

Untruth in Law Courts


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Untruth in Law Courts

The canker of untruth had eaten the judicial system hollow. Gandhis comment: The atmosphere round law courts is

debasing as any visitor passing through them can see. I hold

radical views about the administration of justicee. But mine, I

know, is a voice in the wilderness. Vested interests will notallow radical reform, unless India comes into her own through

truthful and non violent means. If that glorious event

happens, the adminstration of law and justice will be as cheap

and healthy as it is today dear and unhealthy.

Hindu law and Mysore


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Hindu law and Mysore A writer from Mysore enumerated the following social evils in a letter to

Young India

1. women are denied the right of inheritance

2. Near relations are excluded from the list of heirs due to the presence of

distant agnates

3. Women are not allowed to exercise full rights of ownership in properties

inherited or gifted to them4. Deaf and dumb are excluded from inheritance

5. Legality of widow remarriage is not recognized in Princely Mysore

6. Marriageable age for girls should be raised to 14

7. Divorce should be recognized

8. Inter caste marriages should be legalized

9. Orphans should be declared eligible for adoption

10. Widows should be allowed to adopt

11. Necessity of appropriate legislation in Mysore to bring about the

aforesaid social reforms

Gandhis response


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Gandhi s response

This very unsatisfactory state of things has tobe changed if hindu society is to become a

progressive unit in human evolution. The

British rulers cannot make these changesbecause of their different religion and their

different ideal. Unless therefore Hindu

public opinion clearly demands it, no drastic

change in our customs or so called laws will be

attempted or countenanced by them.

Establishment of the Federal Court


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Establishment of the Federal Court

Gandhis speech at the Federal Structure Committee as arepresentative of Congress (1930)

Discussion regarding the structure and powers of Federal

Court in an India which would be self governed but with

military and purse strings in the hands of the Crown The Privy Council here is an ancient institution, and an

institution which justly commands very great regard and

respect; but in spite of all the respect that I have for the Privy

Council I cannot bring myself to believe that we also will notbe able to have a Privy Council of our own which will

command universal esteem.


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seeing that the congress holds the view thatthis federal court or supreme court will occupy

the position of the highest tribunal beyond

which no man who is an inhabitant of Indiacan go, its jurisdiction, in my opinion, will be

limitless the greater the power that we give

to this Federal court, I think the greater the

confidence we shall be able to inspire in the

world and also in the nation itself.


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Quote from a great Jurist in Transvaal,Though there may be no hope now, I tell you

that I have guided myself by one thing, or else

I should not be a lawyer: the law teaches uslawyers that there is absolutely no wrong for

which there is no remedy, then those judges

should be immediately unseated.

The place of the lawyers in a non

i l i


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violent society

Conversation between reader and editor

Pg.228-231

An advocates dilemma

bli h d i Y I di


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published in Young India

Dichotomy between obeying everyday overlordship of British rule and trying to

emphasize that India was independent as per

Congress declaration of Independence.

5000 miles away


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y

Location of final appellate court i.e. Privy Council 5000 milesaway from the population it governs.

If it were not for the hypnotism under which we are laboring,

we would see without effort the futility, the sinfulness, of

going 5000 miles to get (to buy?) justice. It is said that at thatdelightful distance the judges are able to decide cases with

greater detachment and impartiality than they would be able

to do in delhi a self respecting indian would never tolerate

the location of her final court of appeal anywhere else but in

india.

Justice from 6000 miles


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the different forts of india no doubt are a continuous

reminder of the british might. But the silent conquest of themind of educated India is a surer guarantee of british stability

than the formidable courts

Arguments in favor of keeping Privy council inEngland

A. the judges would be more impartial 6000 miles away

B. the expenditure incurred would be the same

C. the Indian judges would not command the same respect as

british ones

The deciding reason for having our Supreme Court in india isthat our self respect demands it. Just as we cannot breathe

with other lungs, be they ever so much powerful, so we may

not borrow or buy justice from england.

Comment on jury trials


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j y

Trials by jury often result, all over the world,is defeating justice. But people everywhere

gladly submit to the drawback for the sake of

the more important result of the cultivation ofan independent spirit among people and the

justifiable sentiment of being judged by ones

own peers.

Aundh constitution


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Gandhis remarks on the new Aundhconstitution.

A. literacy kept as an eligibility for right to vote

B. easy access to justice by making lower courtfree

C. abolition of any intermediate courts

(wanted the same eligibility before granting

right to vote)

Civil v. Criminal


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when a man willfully breaks his own laws, the disobediencebecomes criminal What is true of the individual is true of

the corporation. At the present moment one observes this

criminal breach by the govt of its own laws through out India.

Sections of Penal Code and CrPC are being freely abused and

because non cooperators refrain from questioning orders

issued by officials, bare faced illegalities are being committed

by them with impunity is it any one wonder if one infers

from this campaign of repression an intention on the part of

the govt to incite violence when therefore a govt thusbecomes lawless in an organized manner, civil disobedience

becomes a sacred duty.

Famous customs declaration at the

ti f II d t bl f


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time of II round table conference

I am a poor mendicant. My kit consists of twospinning wheels, a few jail utensils, a can of

goats milk, 4 lion clothes, two towels and

my reputation which cannot be worth much.

The Law and the Lawyer

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